Citation Nr: 0828086
Decision Date: 08/19/08 Archive Date: 08/28/08
DOCKET NO. 00-06 158 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Muskogee,
Oklahoma
THE ISSUES
1. Entitlement to an initial rating in excess of 40 percent
for degenerative disc disease of the lumbar spine.
2. Entitlement to service connection for a left knee
disorder, to include as secondary to service-connected
bilateral pes planus.
REPRESENTATION
Appellant represented by: Virginia A. Girard-Brady,
Attorney at Law
ATTORNEY FOR THE BOARD
S. Higgs, Counsel
INTRODUCTION
The veteran served on active duty from March 1979 to
September 1979. He also had 3 months of prior active service
in the National Guard.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from February 1997 and October 1999 rating
decisions of the Department of Veterans Affairs (VA) Regional
Office (RO) in Muskogee, Oklahoma.
This case was the subject of a Board remand dated in
September 2003, and a Board decision dated in March 2006. In
a March 2008 Order, the Court of Appeals for Veterans Claims
(Court) granted a Joint Motion for Partial Remand of the
parties. The Court thereby vacated and remanded only that
part of the Board's March 2006 decision that denied an
initial rating in excess of 40 percent for degenerative disc
disease of the lumbar spine, and denied entitlement to
service connection for a left knee disorder, to include as
secondary to service-connected bilateral pes planus. The
below action is directed in view of the Court's Order.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
In the Joint Motion for Partial Remand in this matter, as
effectuated by an Order of the Court dated in March 2008, it
was requested that Board remand the veteran's claims so that
the RO can seek to obtain his SSA disability benefits records
and associate them with the claims file. (See March 2008
Joint Motion for Partial Remand, pages 3-4.)
Additionally, since the issuance of the Board's March 2006
decision in this matter, the Court has issued significant
precedential decisions regarding the notice requirements of
the Veterans Claims Assistance Act of 2000 (VCAA), which
describes VA's duty to notify and assist claimants in
substantiating a claim for VA benefits. See 38 U.S.C.A.
§§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). The RO
should take this opportunity to ensure the veteran is
provided notice that complies with the requirements of the
VCAA as interpreted by the Court.
Accordingly, the case is REMANDED for the following action:
1. With respect to the issue of
entitlement to service connection for a
left knee disorder, claimed as secondary to
service-connected bilateral pes planus,
issue a corrective VCAA notice letter, in
accordance with 38 U.S.C.A. §§ 5102, 5103,
and 5103A (West 2002), 38 C.F.R. § 3.159,
Quartuccio v. Principi, 16 Vet. App. 183
(2002), Dingess/Hartman v. Nicholson, 19
Vet. App. 473 (2006), and any other
applicable legal precedent. Apprise the
veteran of what the evidence must show to
support a claim for both direct incurrence
and secondary service connection, and the
division of responsibility between him and
VA in obtaining such evidence. The veteran
should also be provided an explanation as
to the type of evidence that is needed to
establish both a disability rating and an
effective date, per Dingess.
With respect to the issue of entitlement
to a rating in excess of 40 percent for
degenerative disc disease of the lumbar
spine, issue a corrective Veterans Claims
Assistance Act of 2000 (VCAA) (codified at
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A,
5106, 5107, 5126 (West Supp. 2002))
notice, in accordance with Vazquez-Flores
v. Peake, 22 Vet. App. 37 (2008). The
VCAA notice should specifically: (1)
inform the claimant that to substantiate
his increased rating claim, he must
provide, or ask the Secretary to obtain,
medical or lay evidence demonstrating a
worsening or increase in severity of the
disability and the effect that worsening
has on the claimant's employment and daily
life; (2) provide general notice of the
criteria necessary for entitlement to a
higher disability rating under the
applicable Diagnostic Code(s); (3) inform
the claimant that disability ratings will
be determined by applying relevant
Diagnostic Codes, which typically provide
for a range in severity of a particular
disability from 0 percent to as much as
100 percent based on the nature of the
symptoms of the condition for which
disability compensation is being sought,
their severity and duration, and their
impact upon employment and daily life; and
(4) provide examples of the types of
medical and lay evidence relevant to
establishing entitlement to increased
compensation.
2. Contact the Social Security
Administration (SSA) and obtain and
associate with the claims files copies of
the veteran's records regarding SSA
disability benefits, including any SSA
administrative decisions (favorable or
unfavorable) and the medical records upon
which the decisions were based.
3. Readjudicate the issues on appeal. If
any benefit sought remains denied, the
veteran and his representative should be
provided a supplemental statement of the
case and an appropriate period of time for
response.
Thereafter, subject to current appellate procedure, the case
should be returned to the Board for further consideration, if
otherwise in order. No action is required of the veteran
until he is otherwise notified by the RO. By this action,
the Board intimates no opinion, legal or factual, as to any
ultimate disposition warranted in this case.
The appellant has the right to submit additional evidence and
argument on the matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
_________________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2007).